Brexit – constitutional considerations :  The process of withdrawal


The referendum has no formal legal or constitutional status. The holding of the referendum was mandated by Parliament, in the European Union Referendum Act 2015, which deals with the procedures in detail, but is silent as to the status of the result. If Parliament had wished to make the result of the referendum binding it could have done so, as it did in the case of the Parliamentary Voting System and Constituencies Act 2011 which provided for the referendum on the alternative vote mechanism.

The result has considerable political significance. Even in political terms, it is of course entirely unclear what the voters actually wanted, or indeed what they expected the outcome to be.

In the short term, no politician can suggest that the result can be overturned but that would change if, in the light of future economic developments and the evolution of some understanding of what the post Brexit position might be, there was a decisive shift in public opinion. The situation echoes the attempt to progress House of Lords reform in 2003. Each House had a free vote on a number of options, all of which were rejected. It is conceivable that no actual Brexit model would achieve majority support. Faced with this, the government could abandon the entire process. There are clear political reasons for national political leaders in the other 27 EU states and senior figures within the EU to treat the referendum result as definitive and to try to get on with the procedure for withdrawal, but it is not their process to control.

The withdrawal mechanism is contained in Art 50 of the Treaty on European Union:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention. … the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. …
  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless [extended by agreement].

Paragraph 2 assumes a framework for a future relationship is being elaborated in parallel with the withdrawal negotiations, suggesting that these concern ways and means issues. Suggestions from the EU side that the future relationship can be negotiated only once the withdrawal has been settled seem to ignore these provisions.

Only the State concerned can initiate this procedure, and it must give explicit notification.

Art 50 is not drafted with the precision of United Kingdom legislative instruments, but it is arguable that the giving of notice to withdraw does not constitute withdrawal. It merely triggers a procedure for negotiation of the terms and conditions of withdrawal (and the future relationship). The notice could be rescinded at any time prior to the date referred to in paragraph 3.

It serves the political interests of the UK to defer giving notice. There is currently a policy vacuum, and no one has the political authority to resolve this. Subsequently the government could, arguably, give formal notice under the royal prerogative to conduct foreign affairs. Alternatively, an Order in Council could be made under s2 (2) of the European Communities Act 1972, since the invocation of Art 50 clearly relates to the rights or obligations of the UK under EU law. These are Executive actions but may not be effective. This analysis does not take account of the provisions of s20 of the Constitutional Reform and Governance Act 2010. In summary, either House may delay ratification of a treaty and, if there are two consecutive negative resolutions of the House of Commons, the treaty may not be ratified. S22 of the Act does provide for Executive ratification in exceptional circumstances but only if there has not yet been a negative resolution of either House. This seems intended to cover treaties negotiated urgently in a crisis. It is not credible for it to be invoked in the context of the agreement to give effect to an Art 50 agreement.

This brings us to the thorny issue of what the ‘constitutional requirements’ of the UK are in this field. This is entirely uncharted territory. The United Kingdom has previously changed its constitution by union with Scotland and Ireland and partial dissolution of the union with Ireland, but these were matters of direct legal concern only to the participating nations. Parliament effected the changes through appropriate legislation. It is submitted that an analogous step such as withdrawal from the EU must also be formally undertaken by Parliament through legislation.

In the case of the other 27 member states, each of which has a codified constitution, there is a specific mechanism, compliance with which can be ascertained. A notification issued otherwise than in accordance with those requirements would be a nullity in national law, and could not be lawfully acted on by the EU.

The UK, of course, has a non-codified constitution but its cardinal principle is parliamentary sovereignty. Parliament has legislated, in the European Communities Act 1972 and numerous subsequent enactments, for the UK to be a member of the EU. It would be unconstitutional to make the formal legal decision to withdraw unless and until Parliament has legislated to reverse this, albeit by legislation with a delayed operation, as the UK remains bound by the Treaties in the interim (Parliament cannot bind itself, so any provisional repeal would itself be reversible). It is not clear that there would be a parliamentary majority for this legislation. A substantial majority of MPs indicated that they were personally in favour of remaining in the EU. The same is almost certainly true of the House of Lords. The Lords would be fully justified in blocking any such legislation or resolution even if it passed the Commons, since it is clearly not governed by the Salisbury/Addison convention as there was no relevant manifesto commitment at the General Election.

Any attempt by the government of the day to give a notification other than in pursuance of specific Parliamentary authority would clearly be an Executive act susceptible of judicial review. Furthermore, any acceptance of such a notification by the other member states would be open to legal challenge in the EU courts, as the EU operates in accordance with the principle of legality, and an irregular notification would be illegal in this sense.

  1. The legal status of individuals

There is a strong legal argument that even if the UK completes its withdrawal from the EU, this will not affect the status of individual UK citizens who are at present by virtue of that citizenship citizens of the EU. This is provided for by Art 20 of the Treaty on the Functioning of the European Union, in the following terms:

  1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
  1. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States; …

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

Paragraph 1 is clear, precise and unconditional. Conditions apply to the rights, not the status. The right to move and reside is subject to the provisions of the Citizens Rights Directive (Dir 2004/38). This gives an unqualified right to move and reside on the territory of another member state for up to three months, and to reside for longer for those workers, students and the self-sufficient, together with their family members.

Direct effect has been a cornerstone of EU law since Case 26/62 van Gend en Loos:

The [EU] constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals. Independently of the legislation of Member States, [EU] law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.

The Treaty has expressly conferred the status of Union citizenship on all individuals who are citizens of a member state. The Court of Justice has accepted that this provision is directly effective. See, for example, the judgment in Case C-85/96 Martinez Sala v Freistaat Bayern.

62 Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.

63 It follows that a citizen of the European Union, such as the appellant in the main proceedings, lawfully resident in the territory of the host Member State, can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law … [The references are to the equivalent provisions of the European Community Treaty.]

If a State terminates membership of the EU, this does not have retrospective effect. Art 70 of the Vienna Convention on the Law of Treaties 1969 provides:

  1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) Releases the parties from any obligation further to perform the treaty;

(b) Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

Art 50 TEU makes it clear that the Treaties cease to apply only from the date specified in paragraph 3, therefore accrued rights are unaffected. The withdrawal agreement could purport to retrospectively nullify the grant of Union citizen status but it is submitted that this is not legally possible. It is arguable that even the UK Parliament (despite its allegedly unfettered powers) lacks the capacity to deprive its own citizens of their Union citizen status, since it did not grant that status. It is much more strongly arguable that the EU itself cannot lawfully deprive UK citizens of their Union citizenship. EU institutions are bound by the Charter of Fundamental Rights of the European Union. Art 1 provides that ‘Human dignity is inviolable. It must be respected and protected’. It is submitted that deprivation of Union citizenship would be a gross affront to the dignity of the individual concerned. This argument would apply to all UK citizens, other than those born after the withdrawal process was completed. Since the Treaties would no longer apply to the UK, they would not acquire Union citizenship.

The practical implications of this will depend on what explicit arrangements for free movement emerge from the withdrawal process. It is considered highly unlikely that visa requirements would be imposed for short-term visitors, and the remaining EU as a whole, or individual states, may well be content to admit self-sufficient individuals such as retirees on a permanent basis.

There is however an important underlying legal principle which has clearly not been thought through, since those responsible for drafting the Treaties and the EU legislation in relation to Union citizenship do not appear to have done so in the expectation that there would ever be an actual withdrawal so the consequences of this have not been considered.

John Hodgson, Reader in Legal Education, Nottingham Law School, part of Nottingham Trent University

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